Recent Case: General principles and specific crimes

• Jurisdiction: South Africa
• Citation: (2010) 23 SACJ 122
• Published date: 16 August 2019
• Date: 16 August 2019
• Pages: 122-131
• Author: Shannon Hoctor

General principles and specic crimes

SHANNON HOCTOR

University of KwaZulu-Natal, Pietermaritzburg

General principles

Common purpose, intention and negligence

In S v Dube 2010 (1) SACR 65 (KZP) the court heard an appeal against

convictions of murder and attempted murder in the court a quo. It was

established that the appellants were par ty to a common purpose to

break into the First National Bank at Harding and steal all the money in

its vault (at para 5), and were convicted of housebreaking with intent

to commit theft and attempted theft on this basis, having been foiled

in their efforts by the police. When the police surprised the appellants,

one of their group tried to hit one of the policeman with a crowbar,

despite having been warned by the policeman, whereupon the police-

man fatally wounded the attacker. These events gave rise to the charges

of murder and attempted murder, on the basis of dolus eventualis.

The court noted the need to engage in inferential reasoning in es-

tablishing intention, and cited the cautionary injunctions in the cases

of S v Sigwahla 1967 (4) SA 566 (A) and S v Lungile 1999 (2) SACR 597

(SCA) in this regard (at paras 6-8). Given the careful steps taken by the

appellants to avoid detection, the court held that it could be inferred

that the appellants did not foresee the possibility of detection (at para

14). Further support for this conclusion could be derived from the fact

that the appellants were all unarmed, from which fact the court pro-

ceeded to infer that the appellants had not reconciled themselves to a

‘“dangerous resistance” to arrest with all its attendant consequences’ (at

para 16). Had such foresight been present it would have been expected

that the appellants would have armed themselves with a f‌irearm (see

discussion at paras 17-20). In the absence of any such indication of

foresight of danger, the court held that it could not be established that

the appellants foresaw that one of their group would arm himself with

one of the housebreaking implements and attack the policeman, result-

ing in the assailant’s death, and the deceased’s acts could be regarded

as a ‘frolic of his own’ (at para 20). Moreover, their foresight of the pos-

sibility of arrest (resulting in the taking of precautions) was wrongly

RECENT CASES

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(2010) 23 SACJ 122

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